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FOR PUBLICATION

UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT
Petitioners-Appellants.
OPINION
v.
MARK A. MACARRO; DONNA
BARRON; MARC CALAC; MARK
LUKER; ANDREW MASIEL; RUSSELL
BUTCH MURPHY; KENNETH PEREZ;
DARLENE AZZARELLI; CHRISTINE
LUKER,
Respondents-Appellees. 
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 17, 2009—Pasadena, California
Filed December 22, 2009
16699
DISSENTING OPINION

Wilken, District Judge, dissenting:

Appellants, enrolled members of the Pechanga Tribe since birth, filed a petition for a writ of habeas corpus
under the Indian Civil Rights Act (ICRA) asserting that their Tribal
Council violated the due process, equal protection, free speech and cruel and unusual punishment clauses of
the Act when it stripped them of membership in the Tribe. The membership criteria that the Tribal Council
applied were not established until 1979; the procedures it used to disenroll Tribal members were not
established until 1988; and the Tribal Council did not begin disenrolling large numbers of members until
recently, when the Tribe’s casino profits became a major source of revenue.1

Appellants allege that they are victims of the Tribal Council’s greed associated with these casinos. The
majority concludes that the district court properly dismissed Appellants’ petition for lack of subject matter
jurisdiction because Appellants (1) were disenrolled as the result of a civil proceeding, (2) were notdetained
and (3) did not exhaust their Tribal remedies.

I respectfully dissent and address each argument in turn.

I. Indian Civil Rights Act (ICRA)

Beginning in 1961, through hearings and surveys, Congress commenced an investigation into the conduct of
tribal governments due to abuses that some tribal members were enduring at the hands of tribal officials. In
1968, Congress enacted ICRA to protect against such abuses by imposing restrictions upon tribal
governments similar to those contained in the Bill of Rights and the Fourteenth Amendment. The
enforcement mechanism Congress provided was that of habeas corpus in federal courts. 25 U.S.C. § 1303. A
central purpose of ICRA was to “ ‘secur[e] for the American Indian the broad constitu-
1At the time of Appellants’ disenrollment, every adult Pechanga received a per capita benefit of over
$250,000 per year. JEFFREDO v. MACARRO 16717

tional rights afforded to other Americans,’ and thereby to‘protect individual Indians from arbitrary and unjust
actions of tribal governments.’ ” Santa Clara Pueblo v. Martinez, 436
U.S. 49, 61 (1978) (quoting S. Rep. No. 841, 90th Cong., 1st Sess., 5-6 (1967)).

A. Criminal v. Civil Action

I disagree with the majority’s view that ICRA provides a federal court with jurisdiction to review only a
tribal criminal proceeding, not a civil proceeding.
The plain language of § 1303 does not limit the court’s habeas jurisdiction to criminal proceedings. Section
1303 simply provides, “The privilege of the writ of habeas corpus shall be available to any person, in a court
of the United States, to test the legality of his detention by order of an Indian tribe.”
In other contexts, the writ of habeas corpus has historically been available to contest detention resulting from
civil proceedings. See, e.g., Rex v. Clarkson, 1 Strange 444 (K.B.1720); Gegiow v. Uhl, 239 U.S. 3 (1915).

The Supreme Court has held more recently that nothing in the language of the provisions for federal habeas
relief for a person in custody pursuant to the judgment of a state court “requires that the state court judgment
pursuant to which a person is in custody be a criminal conviction.” Duncan v. Walker, 533 U.S. 167, 176
(2001). As examples, the Court cited cases in which federalcourts had applied federal habeas review to
petitions brought “to challenge the legality of a state court order of civil commitment
or a state court order of civil contempt.” Id. (citations omitted). No reason appears in the plain language of §
1303 to give it a narrower “reach than [the] cognate statutory provisions governing collateral review of state
and federal action[s].” Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 879-80 (2d Cir. 1996),
cert. denied, 519 U.S. 1041 (1996).

16718 JEFFREDO v. MACARRO

The majority relies primarily on Santa Clara Pueblo to support its conclusion. In that case, a female
member of the Santa Clara Pueblo Indian tribe and her daughter brought suit in federal court against the tribe
and its governor seeking declaratory and injunctive relief against enforcement of a tribal ordinance denying
membership in the tribe to children of female members who marry outside the tribe, while extending
membership to children of male members who marry outside the tribe.

The issue before the Supreme Court in Santa Clara was whether ICRA could be “interpreted to impliedly
authorize” the “bringing of civil actions for declaratory or injunctive relief to enforce its substantive
provisions.” Santa Clara, 436U.S. at 51-52. The Court held that it could not.
The Court stated that its holding was “strongly reinforced by the specific legislative history underlying 25
U.S.C. § 1303.” Id. at 66. As part of its discussion of the legislative history, the Court explained that
Congress had considered and rejected two proposals that would have allowed for “federal
review of alleged violations of the Act arising in a civil context.”Id. at 67. One of these proposals would have
required the Attorney General to prosecute deprivations of an Indian’s statutory or constitutional rights and
the other would have authorized the Department of the Interior to adjudicate civil complaints concerning
tribal actions. Id. at 67-68. While Congress rejected these two particular proposals, the legislative history
does not indicate that it rejected any possible review of civil proceedings, and the Court did not so find.
The Court also noted, “In settling on habeas corpus as the exclusive means for federal-court review of tribal
criminal proceedings, Congress opted for a less intrusive mechanism than had been initially proposed.” Id. at
67. (The initial proposal to which the Court referred here would have allowed for de novo review in federal
court of all convictions in tribal courts.) JEFFREDO v. MACARRO 16719
From the premise that habeas corpus is the exclusive means for review of criminal proceedings, it does not
follow as a matter of logic or grammar that habeas corpus is a means that can be used to review criminal
proceedings exclusively.
In other words, the Court’s statement does not preclude habeas review of civil proceedings that result in
detention. The Court held only that habeas corpus, and not any other federal remedy such as a direct appeal,
is provided by ICRA. The Court had no need to, and did not, decide that habeas jurisdiction under ICRA
applied only to criminal proceedings. Such is the Second Circuit’s interpretation of the case: “Santa Clara
Pueblo obviously does not speak directly to the scope of Title I’s habeas provision, which was a matter not
raised in that case.” Poodry, 85 F.3d at 887. In Poodry, the Second Circuit also found that “it is not possible
to draw from [ICRA’s] legislative history a definitive conclusion as to whether Congress intended that
habeas review be restricted to criminal convictions, or whether other circumstances of‘detention’ by a tribal
court order could trigger habeas review.” Id. at 888.
The fact that the challenged proceedings in the case before us were civil, not criminal, does not, in my view,
bar the district court from hearing the matter under § 1303.
B. Detention
“Detention” by order of an Indian tribe is the sole jurisdictional prerequisite for federal habeas review. The
requirement in § 1303 that an individual be “detained” is akin to the “in custody” and “detention”
requirement in other habeas statutes. Poodry, 85 F.3d at 891 (“Congress appears to use the terms ‘detention’
and ‘custody’ interchangeably in the habeas context.”). The habeas statutes analogous to § 1303 refer to
“detention” as well as “in custody” throughout. See 28 U.S.C. §§ 2242, 2243, 2245, 2249, 2253 and 2255.
“There is no reason to conclude that the requirement of ‘detention’ set forthin the Indian Civil Rights Act §
1303 is any more lenient than the requirement of ‘custody’ set forth in the other federalhabeas statutes.”
Moore v. Nelson, 270 F.3d 789, 791 (9th Cir.2001). Nor is there any reason to conclude that the requirement
of “detention” in § 1303 is any more strict than the requirement of “custody” or “detention” in the other
federal habeas statutes.
The custody or detention requirement may be met if the habeas petitioner is not physically confined. Jones
v. Cunningham, 371 U.S. 236, 239-40 (1963); see Dow v. Court of the First Circuit Through Huddy, 995
F.2d 922, 923 (9th Cir.1993) (per curiam) (holding that a requirement to attend fourteen hours of alcohol
rehabilitation constituted custody; requiring petitioner’s physical presence at a particular place “significantly
restrain[ed] [his] liberty to do those things which free persons in the United States are entitled to do”),cert.
denied, 510 U.S. 1110 (1994).
This requirement is designed to limit the availability of habeas review “to cases of special urgency, leaving
more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.”
Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Therefore, the inquiry into whether a petitioner has
satisfied the jurisdictional prerequisites for habeas review requires a court to judge the “severity” of an
actual or potential restraint on liberty.
The combination of the current and potential restrictions placed upon Appellants and the loss of their
life-long Pechanga citizenship constitutes a severe restraint on their liberty.
The majority analyzes each of these grounds separately, instead of collectively, and determines that none
amounts to a detention. I respectfully disagree with this approach.
When Tribal members are disenrolled, they become “nonmembers” of the Tribe and lose all rights associated
with being a Pechanga citizen. One of those rights is access to the Pechanga Reservation. The Pechanga Non-
Member Reservation Access and Rental Ordinance (Reservation Access Ordinance) states, “The custom,
tradition and practice of thePechanga Band has always been, and remains, that thePechanga Reservation is
closed to non-members. Access to and residency within the Pechanga Reservation is a privilege which may
be granted or denied to an individual upon proper authority of the Pechanga Band.”
Elsewhere, the Reservation Access Ordinance provides, “Use by non-members of roads within the Pechanga
Reservation is . . . by permission of the Tribal Council and is subjectto revocation at any time and for any
reason.” The Ordinanceestablishes that a non-member may enter the Pechanga Reservationonly upon
invitation by the Tribal Council or by an enrolled member of the Pechanga Band. Otherwise, access to
the Pechanga Reservation by non-members is prohibited. Since being disenrolled, Appellants have been
excluded from the school, the health clinic and the senior citizens’facilities on the Reservation. Some of the
Appellants live onthe Reservation. Although they may enter the Reservation andtravel to their homes, any
Tribal Ranger can take away that liberty at any moment. Pechanga Tribal Rangers have the authority and
discretion summarily to exclude non-members from the Pechanga Reservation for up to seven days for any
of the following reasons:
(1) suspicion that a non-member has committed a violation of any applicable tribal, state or federal
law within the Pechanga Reservation; (2) suspicion that a non-member is a danger to
himself, herself or others; (3) a finding by a Tribal Ranger that a non-member
is a public nuisance; or (4) any behavior which is suspicious or not consistent
with a legitimate visit either to a tribal enterprise for business or patronage purposes,or to the home of a
resident of the Pechanga Indian Reservation by invitation and in compliance with the Non-Member
Reservation Accessand Rental Ordinance.
Thus, a parent could, without warning, be barred from going home for a week by a Tribal Ranger who
observes “any behavior that is suspicious.” That Appellants have not been removed thus far does not render
them free or unrestrained. Appellants may currently be able to “come and go” as they please, cf. Hensley,
411 U.S. at 351, but their current status as non-members living on the Pechanga Reservation means that at
any point they may be compelled to “go,” and be no longer welcome to “come.” That is a severe restraint
to which the members of the Pechanga Band are not generally subject. See id.

The majority analogizes the severe restraint Appellants confront with that in a case involving a twenty-five
dollarfine. Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir. 1975). In that case, the court held that
Edmunds was not subjected to a severe restraint because there was “no provision inthe sentence for his
confinement in the case of non-payment.”Id. The court generally observed that “a threat of incarceration is
implicit in any court-imposed fine, for jail is one of the sanctions by which courts enforce their judgments
and orders.” However, in the circumstances of Edmunds, “confinement [was] no more than a speculative
possibility — ‘the unfolding of events may render the entire controversy academic.’ ” Id. (quoting Hensley,
411 U.S. at 352). Analogizing the current and potential penalties involved in this case with a twenty-five
dollar fine and the speculative possibility that failure to pay the fine may result in judicial proceedings
leading to confinement trivializes the severity of Appellants’ situation. Furthermore, Appellants have been
stripped of their lifelongPechanga citizenship, which by itself constitutes a severe deprivation. A
deprivation of citizenship is “an extraordinarily severe penalty” with consequences that “may be more
grave
than consequences that flow from conviction for crimes.”
Klapprott v. United States, 335 U.S. 601, 611-12 (1949). The Supreme Court has found the penalty of
denationalization of a natural-born citizen, sought to be imposed after conviction
for military desertion, to be unconstitutional. See Trop v. Dulles, 356 U.S. 86, 104 (1958).
It is a form of punishment more primitive than torture, for it destroys for the individual the political
existence that was centuries in the development.
....
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the
individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be
established against him, what proscriptions may be directed against him, and when and for what cause
his existence in his native land may be terminated. He may be subject to banishment, a fate universally
decried by civilized people. . . . It is no answer to suggest that all the disastrous consequences of this
fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. Id. at 101-
102. A “deprivation of citizenship does more than merely restrict one’s freedom to go or remain where others
have the right to be: it often works a destruction of one’s social, cultural, and political existence.” Poodry, 85
F.3d at 897. Although with disenrollment Appellants retain theirUnited States citizenship and will not be
physically stateless, they have been stripped of their life-long citizenship and identity as Pechagans. This is
more than just a loss of a label, it is a loss of a political, ethnic, racial and social association.
William C. Canby, Jr., American Indian Law in a Nut Shell §§ III.B-C (5th ed. 2009); Felix S. Cohen,
Handbook of Federal Indian Law § 3.03 (2005).
Such a loss constitutes a restraint on liberty that, combined with the actual and potential restraints
described above, satisfies the detention requirement under § 1303, in my opinion.

C. Exhaustion
The majority concludes that we lack jurisdiction over anyclaims for exclusion or eviction because Appellants
have not exhausted their Tribal remedies for such claims or demonstrated that exhaustion would be futile.
But Appellants are not asserting jurisdiction based on any exclusion or eviction from the Pechanga
Reservation. Rather, Appellants’ claim of jurisdiction is based on the restraints on their liberty arising from
being disenrolled and threatened with exclusion. Notably, the parties agree that Appellants have
completed the internal Tribal appeal process for challenging disenrollment. Further, there does not
appear to be any remedy available to Appellants if they were to be given a seven-day exclusion without
warning. Appellants have exhausted their claims and their habeas petition is ripe for adjudication.

II. Conclusion
When viewed together, the act of stripping Appellants’ Tribal citizenship and the current and
potential restrictions placed upon Appellants constitute a severe restraint on their liberty.

Therefore, Appellants have been detained within the meaning of § 1303. Accordingly, I would
reverse and remand to the district court to hear their petition for a writ of habeas corpus on
its merits.